FZS24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1623

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This matter was listed before the Court for a directions hearing in the Perth Registry at 9.30am AWST on 3 October 2025. When the matter commenced, there was no appearance by or on behalf of the applicant.
2. In the circumstances, the Court made the following orders:

(1) The name of the first respondent be amended to read "Minister for Immigration and Citizenship'.

(2) Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

(3) The application for an extension of time be dismissed for non-appearance pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

(4) The applicant pay the first respondent's costs fixed in the sum of $4,189.38.

1. The following reasons explain why the Court dismissed the matter for non-appearance pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the Rules).

1. Before the Court is an application for an extension of time filed in the Perth Registry of this Court on 9 August 2024 (the application). That application was accompanied by an affidavit which was affirmed by the applicant on 8 August 2024.
2. The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 19 September 2017. In that decision, the Tribunal confirmed its earlier decision to dismiss the applicant's application for review. The Tribunal's decision is set out in full as follows:

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 May 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. On 4 September 2017 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

4. As the applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is affirmed.

DECISION

1. The Tribunal confirms the decision to dismiss the application.

1. The applicant was entitled to seek judicial review of the Tribunal's decision pursuant to s 477 of the Act. Any such application was to be made within 35 days of the Tribunal's decision dated 19 September 2017 in accordance with s 477(1) of the Act. However, as observed above, the applicant did not file an application until 9 August 2024, which was substantially outside of the period set out in s 477(1) of the Act.
2. The matter was listed for hearing of the application for an extension of time before Judge Kendall on 24 April 2025. On that occasion, Judge Kendall raised with the parties that the Court would be assisted by further submissions addressing whether the decision of the Tribunal was affected by the same error as identified in CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] 377 FLR 90.
3. The matter was subsequently transferred to the docket of Judge Gerrard and re-listed for hearing of the extension of time application on 4 August 2025. The applicant obtained pro bono representation on 6 May 2025, however that representative withdrew on 1 July 2025.
4. The applicant did not appear at the hearing listed for 4 August 2025. On that occasion, counsel for the Minister made an application for the matter to be dismissed as a consequence of the applicant's failure to appear. The Court declined to make such an order at that time.
5. Following the adjourned hearing, a second pro bono lawyer accepted the referral, however they were unable to make contact with the applicant and ultimately withdrew, conceding that they did not have instructions to act for the applicant.
6. On 11 September 2025, the parties were sent a listing notice (via email) advising them that the matter had been listed for a directions hearing at 9.30am AWST on 3 October 2025. The applicant was advised in that email that he was required to appear in person at the aforementioned date and time.
7. When the matter came before the Court on 3 October 2025, the applicant was not present in the courtroom. Ms Taggart appeared as counsel on behalf of the first respondent (the Minister). My associate made three unsuccessful attempts to contact the applicant by the telephone number provided within the applicant's application to the Court. My associate then called the applicant's pseudonym three times within the precincts of the courtroom. The applicant failed to appear and otherwise had not made any contact with the Court to explain their non-attendance.
8. In those circumstances, counsel for the Minister applied to have the matter dismissed for non-appearance pursuant to r 22.04(1)(a)(i) of the Rules. Counsel also sought that the applicant pay the Minister's costs, fixed in the sum of $4,189.38.
9. Noting the history of this matter and the correspondence from the Court, the Court was satisfied that the applicant had been properly notified of the date and time of the directions hearing. In light of the enquiries made, the Court was satisfied that the applicant did not appear at the directions hearing at the designated time.
10. In respect of the costs order sought on behalf of the Minister, the Court was satisfied that the amount sought was appropriate in the circumstances, noting that it is the scale amount for a matter concluded after the first court date, and at or before an interlocutory hearing, as set out in Schedule 2, Part 2, Division 2 of the Rules. The Minister had effectively prepared for an extension of time hearing on two previous occasions, and had filed a Court Book and written submissions to that end.

1. In the circumstances, the Court made orders to dismiss the matter for non-appearance and award costs to the Minister, as outlined at [2] above.
2. The Court notes that the applicant can apply to have his application reinstated pursuant to r 24.04(a) of the Rules.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.